How Conservatives Captured the Law

With a Democratic president beginning his second term in the White House, swinging a more liberal bat than he had in his first term, the conservative legal movement in academe is upping its game.

In January the Legal Studies Institute, a program of the Fund for American Studies, in Washington, solicited law professors across the country to nominate top students for summer internships. The institute’s program and board feature leading members of the Federalist Society for Law and Public Policy Studies, including Peter Redpath, vice president and director of the society’s Student Division. LSI’s elegantly designed brochure features photographs of federal and state judges and leading conservative academics in earnest conversations with law students. The institute guarantees an internship, reminds students that “who you know does matter,” and offers a course, “Originalism and the Federalist Papers.” Past speakers include Justice Antonin Scalia.

In early February, the libertarian Cato Institute sent law professors an e-mail inviting them to subscribe to periodic notices about potential course materials, like Liberty of Contract, Gun Control on Trial, and the institute’s annual Supreme Court Review. Later that month, the Federalist Society sent a brochure to law professors, touting the benefits of membership in its Faculty Division and the variety of programs for law faculty, including the Olin-Searle-Smith Fellows in Law, which offers “top young legal thinkers” a year with an office at an elite law school to pursue their research, a $60,000 stipend, and health benefits. The inside cover of the brochure shows Justice Scalia speaking at the Federalist Society’s 25th-anniversary gala, regaling the audience with an exultant metaphor: “We thought we were just planting a wildflower among the weeds of academic liberalism, and it turned out to be an oak.”

The history of the Federalist Society is a story of how disaffection, bold ideas, commitment to principle, and enlightened institution-building have created a significant conservative shift in the legal, policy, and political landscape of America over the past 30 years. The society reports that more than 45,000 lawyers and law students are involved in its various activities, with approximately 13,000 dues-paying members. With a national budget of about $10-million, in 2010 its 75 lawyer chapters sponsored nearly 300 events for more than 25,000 lawyers, and the society sponsored 1,145 events at law schools for more than 70,000 students, professors, and others. Through conferences, debates, publications, litigation, education, and by holding key positions in government and the judiciary, the society has changed law and policy in areas like property rights, access to courts, affirmative action, privacy rights including abortion and same-sex marriage, and the influence of international law on the domestic legal system.

The Federalist Society’s membership includes many brilliant and sincere theorists who raise important and interesting issues. On the other hand, the society’s critics say, its overall impact is reactionary. By glorifying private property, demonizing government intervention (particularly at the federal level), insisting that originalism is the only legitimate method of constitutional interpretation, embracing American exceptionalism as a reason to remain apart from global governance, and pushing related policies, these critics say, the society advocates a form of social Darwinism that has been discredited by mainstream American legal thought since the 1930s.

Membership includes economic conservatives, social conservatives, Christian conservatives, and libertarians, many of whom disagree with one another on significant issues, but who cooperate in advancing a broad conservative agenda. They generally support individual rights and a free market, and prefer states’ rights to action by the federal government.

Members have held senior policy making positions in the Reagan, George H.W., and George W. Bush administrations; have a commanding presence on the federal bench; and, as private lawyers, advocates in public-interest law firms, and government lawyers, challenge laws that are anathema to their worldview. The dockets of the federal and state courts (including the Supreme Court) are brimming with test cases brought or defended by Federalist Society members to challenge government regulation of the economy; roll back affirmative action; invalidate laws providing access to the courts by aggrieved workers, consumers, and environmentalists; expand state support for religious institutions and programs; oppose marriage equality; increase statutory impediments to women’s ability to obtain an abortion; and otherwise advance conservative ideas.

Academics associated with the Federalist Society have educated a new generation of conservative law students, played a role in the rise of openly conservative law schools like Pepperdine’s and George Mason’s, and succeeded in gaining respect and traction for conservative legal ideas. Those stem in large part from an originalist interpretation of the Constitution, exemplified by the jurisprudence of Justice Scalia. That view posits that to interpret the Constitution, one must search for the original meaning of its provisions. The argument is that the original meaning of words may be objectively determined by recourse to historical sources that reveal how the words were used at the time, and that the original meaning is the only legitimate method of interpreting the document.

In 1980, Steven Calabresi, Lee Liberman, and David McIntosh were young conservative law students at Yale and the University of Chicago. They were alienated from the prevailing liberal political orientation of their classmates and their schools. The New Deal, the civil-rights movement, and the Great Society antipoverty programs had led to widespread faith that government could and should solve the country’s social, political, and economic problems. Calabresi, Liberman, and McIntosh thought otherwise, believing that big government posed a fatal threat to individual rights and the sanctity of private property. In their view, liberals, in pursuit of their social agenda, had distorted important constitutional principles.

The questions that Calabresi, McIntosh, and Liberman raised as they began to organize identified many of the crucial issues of contemporary America: What is the appropriate balance between an individual’s right of self-determination and the powers and responsibilities of government? Should Americans pursue collective or individual solutions to social problems like poverty, care of the elderly, and education? How much regulation of private property and economic behavior is appropriate in a capitalist, free-market country? Is racial and gender diversity in education and employment an appropriate goal for government to pursue, and if so, what means are acceptable for achieving it? In the face of increasing economic and social globalization, what is more important—protecting national sovereignty or establishing international norms? Should judges interpret the Constitution to keep pace with the moral, economic, and social tenor of the times, or should they read the text in the light of its 18th-century meaning?

Calabresi, Liberman, and McIntosh organized the Federalist Society on their campuses in 1981 and 1982, and it swiftly spread to many others. The students were assisted by professors who were themselves struggling with the prevailing liberal ideology of their colleagues. Professors Ralph K. Winter Jr. and Robert Bork helped Calabresi start the Federalist Society at Yale, and Professors Antonin Scalia, Richard Epstein, Richard Posner, and Frank Easterbrook were advisers to Liberman and McIntosh at Chicago. A couple of years earlier, Spencer Abraham and Stephen Eberhard, then students at Harvard Law School, had started the Harvard Journal of Law and Public Policy as a vehicle for conservative ideas. Eventually it would become the official law journal of the Federalist Society.

The Federalist Society’s first major event was a symposium on federalism in April 1982. It was sponsored by the Yale and Chicago law-school groups, the Harvard Journal of Law and Public Policy, and a similar group at Stanford Law School, the Stanford Foundation for Law and Economic Policy. The Institute for Educational Affairs, the Olin Foundation, and the Intercollegiate Studies Institute financed the conference. Within one year of the first symposium, there were 17 Federalist Society chapters, all on law-school campuses.

The society grew continuously in subsequent years. By 2000 it had 25,000 members, lawyer chapters in 60 cities, and law-school chapters on 140 campuses. Today there are more than 300 chapters. They include lawyer chapters in every major city in the country as well in London, Paris, Brussels, and Toronto; student chapters in every accredited law school in the United States and in the business schools at Harvard and Northwestern; and law-school-alumni chapters, recently started by the society to enable alumni to better reconnect. To fuel its networks, the society connects with other conservative organizations—think tanks, public-interest law firms, and philanthropic organizations.

Conservative philanthropists, like the Koch brothers, support the Federalist Society with large annual gifts. Most of those are unrestricted funds, allowing the organization to use the money as it sees fit. Donors have not insisted on measurable short-term outcomes, but are supporting the long-term goal of sustaining a legal conservative movement. In that respect, conservative philanthropists have understood something that liberal philanthropists appear to have missed—the importance of building institutions.

The Federalist Society has been so successful that organizations outside the field of law and policy have adopted its model. The Benjamin Rush Society, founded in 2008, was formed in reaction to what was seen as the prevailing liberal bias in medical-school curricula. It seeks to educate medical students on free-market solutions to health care, and to question government intervention in the relationship between physicians and patients. The Alexander Hamilton Society, dedicated to foreign, economic, and national-security policy, was founded in 2010. The group believes that foreign and domestic policy must be shaped to defend the principles of individual liberty, limited government, economic freedom, the rule of law, human dignity, and democracy. The Adam Smith Society was formed recently to achieve in business schools what the Federalist Society achieved in law schools, exposing students to the philosophical and moral underpinnings of capitalism. All three groups are building institutions based on student chapters. And all three groups subscribe to principles of individual liberty, limited government, and free markets.

Although the predominant values when Calabresi, McIntosh, Liberman, and Abraham arrived in law school were liberal, a wave of conservative political resurgence was reaching its crest as the students began to organize. Sidney Blumenthal, the journalist and onetime aide to President Bill Clinton, describes the election of Ronald Reagan as president in 1980 as a triumph of the new conservative “counterestablishment.” The Reagan presidency created a powerful platform—in all three branches of government—for members of that movement. So when the young Federalist Society lawyers burst onto the scene, there was a political apparatus waiting to put them to work.

For example, after law school, Calabresi clerked for Robert Bork and Antonin Scalia, then worked in the White House and the Justice Department. McIntosh became a special assistant to President Reagan and to Attorney General Edwin Meese III. Liberman clerked for Scalia on the Court of Appeals, then served as an assistant attorney general. When Scalia was appointed to the Supreme Court, she clerked for him there. Later she worked in the White House when George H.W. Bush was president.

Since the Reagan administration, membership in the Federalist Society has become a passport to professional advancement. Federalist Society members reached the height of their political influence in the George W. Bush administration. Then-Vice President Cheney, addressing the Federalist Society at its national convention in 2001, noted, “There are many members of the Federalist Society in our administration. We know that because they were quizzed about it under oath. We’re especially proud to have two of your founders at the Department of Energy—the general counsel, Lee Liberman Otis, and Secretary Spencer Abraham.” In 2001 three cabinet members were either Federalist Society members or active participants: Energy Secretary Abraham, Interior Secretary Gale A. Norton, and Attorney General John D. Ashcroft. Theodore Olson, a Federalist Society stalwart, was solicitor general. Five of the 11 lawyers in the White House Counsel’s Office were members.

The Federalist Society has directly influenced the litigation of some of the most important legal issues of the day, often by representing the parties in the leading cases. A society member has presented the oral argument to the Supreme Court on every abortion case since Planned Parenthood v. Casey, in 1992. In Citizens United v. Federal Election Commission, where the court held that First Amendment protections extended to corporate-financed independent political broadcasts, the case was shepherded through the lower courts by the society member James Bopp Jr. and argued before the Supreme Court by Olson, one of the two or three most powerful litigators in the United States.

Federalist Society members were heavily involved in the challenge to President Obama’s health-care reforms in National Federation of Independent Business v. Sebelius. Paul Clement represented the states that challenged the law, and Michael A. Carvin represented the private challengers. Clement and Carvin participated in the oral argument at the Supreme Court. Karen R. Harned and Randy Barnett also represented the private challengers. Several influential Federalist Society members and allies wrote amicus briefs. Society members fanned out across the country to speak at lawyer and student chapters both before and after the decision. The society also set up a dedicated Web page on which it hosted video from debates at Federalist Society chapters around the country discussing the act and its constitutional implications, as well as scholarly articles and podcasts by society members.

In a decision that Chief Justice Roberts might have compared in his own mind with Marbury v. Madison, the court gave the president the decision on the continued existence of the program, but gave the Federalist Society what it was looking for on the law. The court accepted the society’s argument that the health-insurance individual mandate was unconstitutional under the commerce clause, in part because it created commerce rather than regulated it, and because it regulated inactivity (failing to purchase health insurance) rather than activity. In addition, the court held that the provision penalizing states that refused to participate in the expansion of Medicaid was unconstitutionally coercive under the spending clause, the first time it had ever struck down legislation on that basis. It remains to be seen how much damage these doctrinal rulings will do in the future, but following the decision, Randy Barnett blogged, “Who would have thought that we could win while losing?”

The Federalist Society not only has powerful litigators but also dominates the judiciary. The society came into being at a catalytic moment. Southern resentment at Brown v. Board of Education, disenchantment by “law and order” citizens with the criminal-procedure rulings of the Warren Court, and profound disagreement with Roe v. Wade made conservatives and Republicans angry at the Supreme Court. Ronald Reagan’s presidency and the general renaissance of conservative ideas created an opportunity to demand change on the bench.

Throughout the administrations of all three Republican presidents since its founding, Federalist Society members have occupied key positions in the White House, the Department of Justice, and as outside advisers with respect to the nomination of federal judges. Once a large number of conservative judges were on the bench, new Federalist Society law graduates obtained clerkships with them, an important career steppingstone. The society developed a powerful pipeline from the law schools to judicial clerkships, White House and Justice Department positions, judgeships, and other positions of power and influence.

Four Supreme Court Justices—Antonin, Clarence Thomas, John Roberts Jr., and Samuel Alito—are current or former members of the Federalist Society. Every single federal judge appointed by President George H.W. Bush or President George W. Bush was either a member or approved by members of the society, as were many of the judges appointed by President Reagan.

In Reagan’s administration, Attorney General Meese heavily influenced judicial selection. In Reagan’s second term, Stephen J. Markman, now a member of a Federalist Society majority on the Michigan Supreme Court, was the assistant attorney general in charge of the office that screened judicial candidates. In the administration of George H.W. Bush, the person principally responsible for screening nominees for judicial appointments was the White House counsel, C. Boyden Gray, now a member of the Federalist Society’s board of directors. Gray’s most important staff member with respect to judicial nominees was the Federalist Society founder Lee Liberman.

During the administration of President George W. Bush, the Federalist Society brought its full weight to bear on the judicial-selection process. In addition to two Supreme Court Justices, Roberts and Alito, nearly half of the appeals-court judges Bush appointed were society members. The most important staff lawyers for judicial selection during the crucial first two years of this administration were society members. Brett M. Kavanaugh was the associate White House counsel working under Alberto Gonzales, until the president nominated Kavanaugh himself to the D.C. Circuit Court of Appeals. Assistant Attorney General Viet Dinh was head of the Office of Legal Policy in the Justice Department. When Gonzales resigned, in mid-2007, Michael B. Mukasey, now a member of the Federalist Society’s Board of Directors, became attorney general. During George W. Bush’s second term, two of the key players with respect to judicial selection were Kate Comerford Todd and Rachel Brand, important Federalist Society members.

In addition, judicial selection advice was provided by society members outside the administration, including those known as the “four horsemen": Gray, Jay Sekulow, Leonard Leo, and Meese. In 2005, Leo took a leave of absence from his position as executive vice president of the society to devote more time to advising the president on judicial selection. In addition to providing direct advice to the president, society members were active in a highly organized public campaign to support conservative judicial nominees.

In February 2005, Leo, Meese, and Gray assembled a group of grassroots organizers, public-relations specialists, and legal strategists to prepare for vacancies that might occur on the Supreme Court. They worked through the Judicial Confirmation Network, a group that had been set up to assist Bush judicial nominees. For five years, the chief counsel of the network was Wendy E. Long, a former law clerk to Justice Thomas and Judge Ralph K. Winter. She attempted to pre-empt criticism of Roberts’s membership in the Federalist Society in a “Bench Memo” in Online, asking derisively which senators might be “goaded” at his nomination hearing into asking, “Judge Roberts, are you now, or have you ever been, a member of the Federalist Society?” Another group that lobbied publicly for the president’s judicial nominees was the Committee for Justice, which Gray headed. In 2006, Spencer Abraham, one of the founders of the Federalist Society, became the committee’s chairman.

Federalist Society members are also active with respect to judicial nominations when the president is a Democrat. In 2010, once President Obama began nominating judges, the Judicial Confirmation Network changed its name to the Judicial Crisis Network. Carrie Severino, a former clerk for Justice Thomas, took over as chief counsel. Severino is a Federalist Society member and a member of its Northern Virginia Women’s Caucus.

The Federalist Society has now been moving the law in a conservative direction for more than 30 years. The Office of Legal Policy in the Department of Justice during the Reagan administration, populated by conservative lawyers including young Federalist Society members, published several pamphlets designed to influence the future course of the law. In Report to the Attorney General: The Constitution in the Year 2000, published in 1988, the office described areas of potential conflict on the Supreme Court between then and 2000. Those included the exclusionary rule for evidence collected in violation of a defendant’s constitutional rights in criminal cases; abortion; gay rights; morality as a basis for legislation; affirmative action; private education and the religion clauses of the First Amendment; the free-exercise clause and accommodation of religious practices; freedom of association and protection from government policies as applied to private groups; eminent domain; the authority of the president in foreign policy; protection of the states by the 10th Amendment; the power of the federal courts to restructure local institutions; the rights of aliens; and separation of powers. The report’s emphasis on selecting the right judges to resolve these issues was paramount.

Empirical studies by law professors and political scientists have demonstrated a high correlation between the politics of federal judges and the outcome in cases in their courts. Federalist society members themselves have long believed that the easiest way to change the law is to change the judges. Working together with other conservatives, they have done just that, moving the federal judiciary significantly to the right over the past 30 years. And as they predicted, the law has followed.